S. 374, the "universal background check" bill

Posted by David Hardy · 14 March 2013 12:46 PM

At Shall Not Be Questioned, Sebastian hits the bill hard, and so does Only Guns and Money. I've had a chance to read it (he has a link to the text, and fully agree. It's incredible this thing ever got out of committee. I'll here describe it by page rather than subjection.

Universal background check (p. 11): this applies to any firearm “transfer,” which is defined as including “a sale, gift, loan….” (p. 13). So just handing a firearm to someone else is a forbidden “transfer’ unless it falls within an exception.

And note “loans” and “gifts” are different matters. As Sebastian notes, the bill has exemptions for “bona fide gifts between spouses” and other close relatives, but this only covers gifts, not loans. Handing your spouse or child a gun in the field would be a “loan” and thus a violation (unless you brought an FFL with you to authorize each handing over of a firearm).

Another example. Let’s suppose you go shooting in the countryside (or even on your own property, not near your house) with a friend, and you loan them your rifle for a few shots. You just committed a federal crime, and they’ll commit one when they had it back.

Look at the exemptions on pp. 11-13. It’s not a transfer between spouses, or other designated family. It’s a not a transfer by will. It’s not a temporary transfer “in the home or curtilage” (the area immediately around the house), it’s not a transfer at a target range, nor while hunting. It’s a loan not within any exemption.

The penalty? This section will be numbered as 18 U.S.C. §922(t). Under §924, “Whoever knowingly violates subsection (s) or (t) of section 922shall be fined under this title, imprisoned for not more than 1 year, or both.”

Note the “knowingly.” That means you must have known of your action (you were conscious at the time) but not necessarily knew of the law. The fact that you didn’t know that there was a law against handing your friend a rifle is immaterial.

Or suppose you take a firearm to show to a friend, while inside his house, and let him hold it. Again, a violation. The exemption for a temporary transfer inside the home only applies if it’s the transferor’s home.

Or suppose you hand him a firearm while at a shooting range. You’d better check out the ownership of the range, because the exemption for temporary transfers at ranges only covers ranges owned or occupied “by a duly incorporated organization,” with the specified purposes. If the range is owned by an individual, or a partnership it’s not within the exemption. Ditto if its corporate purposes are not those specified in the bill, so you'd better check its articles of incorporation.

The bill also empowers the Attorney General to shut down all person-to-person transfers, even thru FFLs. He is instructed to promulgate regulations setting a maximum fee that FFLs may charge for handling such transfers (p. 13). So set the fee at $10 and no FFL will take a gun, log it into his books, log it out of his books, check the 4473 and run the background check for so small a sum. Ergo, all transfers between individuals will halt.

Lost and stolen guns reporting (p. 14). The bill requires anyone who has lost a firearm or had it stolen to report it to the Attorney General, and to local authorities, within 24 hours. A violation is penalized by §924(a)(1)(B), which provides that the offender “shall be fined under this title, imprisoned not more than five years, or both.” It moreover need only be a “knowing” violation, not a “willful” one. That is, it is enough prove the defendant knew that he had had the gun stolen and knew that he didn’t report it, even if he had never been told of the requirement to report.

On the side: it appears the drafters of the legislation, as is all too common, had no knowledge of existing gun laws. The AG’s regulations must require of “record of transaction” of any transfer under paragraph 1. (p. 13). That paragraph covers transfers handled by FFLs, and requires the FFL to take possession of the firearm and comply with all requirements for selling a firearm. (p. 11). Those include logging it into and out of his acquisition and disposition book, and getting a 4473 from the recipient. Whoever drafted the bill apparently did not know that FFLs are required to record all transfers!

I don’t know if this reflect cleverness or ignorance, but the bill provides that “notwithstanding any other provision of this chapter,” the AG may promulgate regulations. (p. 13). This may reflect ignorance of the fact that the AG already has power to promulgate regulations to enforce the Gun Control Act. 18 U.S.C. §926. Or it might be a clever attempt to get around that section’s restriction that he promulgate “only such rules and regulations as are necessary to carry out the provisions of this chapter.”

I remember very well how furious DiFi was when she was told about the fact that her first AWB banned only cosmetic features, and that functionally identical firearms were still available. She very tartly said, "We'll see about that!" I suppose that a second attempt was inevitable.

As I understand the present situation, under either intermediate or strict scrutiny the government has the burden of showing that their proposed solution is at least somewhat narrowly tailored, and that the proposed must unequivocally provide the stated intended benefit. If the benefit is equivocal, the right-holder prevails.

If that's true, I don't see how this or any other universal registration scheme would be constitutional. If we could somehow grant the federal government the knowledge of where every firearm is, would it change the homicide rate more than only knowing where there are firearms in the hands of violent felons and homicidal maniacs?

Right or actually wrong, anything is constitutional as long as the black-robed goons on the court say so. At least this is what 99.99% of the sheeple of the US believe. Me, I don't believe anything the court say until I've read the case. And then in 99% of the cases, it is so easy to see the predilection of the judges was the determining factor and that the courts seldom if ever actually understand the clear and plain language of the Constitution.

Everything every government official does, and especially those on the bench, is to steal authority from the people. Power corrupts and absolute power corrupts absolutely.

Having the SC decide on what the Constitution means is like telling G-d what his job is. The courts are all subordinate to the Constitution because the Constitution created them. Only We the People are superior to the Constitution because it is OUR creation. The public schools have corrupt the people's understanding of our government and the position of those in government. Once We the People knew we were in charge. Now we cower to the will of 9 black-robed goons who know nothing more about the Constitution than the general population.

Our troubles began the first day the new government was begun. From that point forward, those in power have been stealing more for themselves. And We the People let them because We the People are ignorant.

It is time to stop listening to those who are the problem and learn the truth. The system was put in place to brainwash the people and it has worked.

They call it “universal background checks”, but that’s a lie. These proposals wouldn’t create a system by which people could run background checks on private transfers, they’d make private transfers illegal, period.

And if we establish a system by which every legal firearm transfer must be accompanied by a government paper trail, we’ve reversed the presumption of innocence for every gun owner.

Where now possession of a firearm is presumed to be legal, unless there is evidence of some specific crime, we’d have a system where possession of a firearm is by definition a criminal act, for which the existence of the proper paper trail would be an affirmative defense.

And where right now it’s only the NFA collectors who risk prison because the ATF has messed up its database, if we eliminate unpapered, private transfers, every gun owner would be faced with this.

Let's assume those pandering idiots in Congress actually pass the Background Checks For Everyone into law.

One would hope this would include cops of all types, and lawyers, judges, and all the rest of that criminal enterprise. Because after all, even FBI records show that some of the most egregious offenders are law enforcement types.

Still, in order for such a law to work, they will first have to implement a national registration list, and will have to validate it by going door to door and presumptively violating the 4th, 5th, 14th, and other Amendments. Otherwise how will they know who sold what to whom?

If they do so, they will make themselves criminals, regardless of any decision by a politicized and cowardly court. They will therefore make themselves subject to the doctrine of self-defense against the threat of de3adly force. The Supreme Court has already set precedent which states that cops are not immune from that doctrine.

Ah hell, haven't had a good war for a long time now. If they're going to do this, let's hope they don't wait until I'm bedridden awaiting Obama-Hillary Care to okay my hospital treatment. Everyone should have the opportunity to take an Honor Guard with them when they go.

"Still, in order for such a law to work, they will first have to implement a national registration list, and will have to validate it by going door to door and presumptively violating the 4th, 5th, 14th, and other Amendments."

No, they won't.

"Otherwise how will they know who sold what to whom?"

They'll never know who sold what to whom. But they'll think they know, and they'll persecute the innocent base on that mistaken presumption.

If they find a gun on you that they believe was manufactured after the imposition of this monstrosity, they will believe that if you can't prove that it was transferred to you, you must have obtained it illegally.

Or, rather, they'll believe that they could threaten to prosecute you for it, and to pressure you into a plea agreement, which adds a notch to their conviction numbers, which is all they really care about.

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Hell,the Gov"t is only looking to protect itself and the common citizen by passing these laws. If there were anarchy, the Gov"t has a necessary and arguably open-ended law set that reigns in distribution and use to and by people attempting to overthrow Americas" foundation of laws and checks that are in place to protect we citizens and non-citizens.Americans will always own firearms,yet as laws are passed and current laws are brought into focus to and actively used to thwart unnecessary possession of large weapons caches the trend will be to lessen scrutiny and be sure of convictions and seizures of these caches. Playing tyrant is not the Federal intent, yet protecting the sovereignty of or country and peoples is, and with that great task the Gov"t must proffer up safeguards in the form of law to keep the balance in check.....